IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
DECEMBER 1999 SESSION
March 8, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * No. W1999-00022-CCA-R3-CD
Appellee, * HENRY COUNTY
VS. * Honorable Julian P. Guinn, Judge
KERMIT MAURICE COZART, * (Aggravated Kidnapping)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
JIM L. FIELDS PAUL G. SUMMERS
111 East Wood Street Attorney General & Reporter
Paris, TN 38242
PATRICIA C. KUSSMAN
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
ROBERT “GUS” RADFORD
District Attorney General
P. O. Box 686
Huntingdon, TN 38344
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Kermit Maurice Cozart, appeals from a guilty verdict
returned against him by a Henry County jury for Aggravated Kidnapping, a Class
B felony. The trial court sentenced the defendant to ten years at 100% as a
violent offender for the aggravated kidnapping. The defendant contends that the
trial court erred in failing to give the defendant’s requested special jury
instruction. The defendant had requested that the trial court specifically charge
the jury on aggravated kidnapping in the context of a robbery in accordance with
the language of State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). The defendant
contends that the court’s instruction left the jury without guidance sufficient to
decide whether the defendant should stand convicted for the offense of
aggravated kidnapping. After careful review, we AFFIRM the instruction,
judgment, and sentence from the trial court.
PROCEDURAL HISTORY AND FACTS
The defendant was originally charged in 1995 with the aggravated robbery
and aggravated kidnapping of Terry Wilkinson at Essary’s Service Station in
Paris, Tennessee. The defendant entered a negotiated guilty plea to the charges
on January 22, 1996. Pursuant to the agreement, the trial court sentenced the
defendant on the counts of aggravated robbery, aggravated kidnapping and
evasion, as a Range I standard offender, to an effective sentence of ten years to
be served at 30%.
However, when the defendant learned that Tennessee Code Annotated §
40-35-501(i) required him to serve 100% of his aggravated kidnapping sentence
as opposed to the 30% release eligibility that his negotiated plea provided, he
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filed a petition for post-conviction relief alleging ineffective assistance of counsel.
He requested that his guilty plea to the count of aggravated kidnapping be set
aside. The trial court granted the defendant’s requested relief finding that
counsel had incorrectly advised him of his release eligibility date.
At the defendant’s new trial for aggravated kidnapping, he requested
special jury instructions clarifying the distinction between an aggravated robbery
with incidental forced movement from an aggravated robbery and a kidnapping.
The requested instructions were based upon Anthony, 817 S.W.2d 299, and, in
relevant part, read as follows:
Whether the confinement, movement or detention is essentially
incidental to the accompanying felony and is not, therefore,
sufficient to support a separate conviction for kidnapping or whether
it is significant enough in and of itself to warrant independent
prosecution and is, therefore, sufficient to support such a
conviction.
The trial court denied the defendant’s request and charged the jury as
follows:
I charge you that any person who commits an aggravated
kidnapping is guilty of a crime. For you to find the defendant guilty
of this offense, the State must have proven beyond a reasonable
doubt the existence of the following essential elements: One, that
the defendant intentionally or knowingly removed or confined Terry
Wilkinson unlawfully so as to interfere substantially with his liberty;
two, that the defendant acted to facilitate the commission of any
felony or flight thereafter; and three, that the felony was
aggravated robbery, which is defined as the theft of property from
the person of another by violence or by putting the person in fear
accomplished by a deadly weapon.
The jury returned a guilty verdict against the defendant as charged and
fined him $25,000. He was sentenced to ten years in the Department of
Correction as a violent offender.
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This conviction, as well as the aggravated robbery conviction, arose from
the following incident. On August 31, 1995, Terry Wilkinson was working as the
manager of Essary’s Service Station in Paris, Tennessee. Around 12:30 p.m.,
the defendant drove a dark blue Mazda into the station. After the victim filled the
defendant’s car with gas, the defendant told the victim to “give me all the money
in your pocket.” Not believing the defendant was a threat, the victim turned and
walked away. The defendant grabbed the victim’s arm and stuck a semi-
automatic pistol to his rib cage.
The defendant then escorted the victim inside, holding his gun on the
victim’s ribs the entire time. Once inside, the defendant took between $700 and
$800 from the station and the victim’s billfold. After he had the money, the
defendant forced the victim into a storage room in the back of the station. The
defendant padlocked the steel door to the storage room and left. The victim was
unable to free himself without assistance and was unable to use a phone to
summon help.
Carolyn Cheek, a regular customer at Essary’s, saw the defendant as he
was pulling out of the station. When she arrived at Essary’s, she wondered why
no one was there to help her. Because she was late for work, she began
pumping her own gas. Mr. Wilkinson, who had been in the storage room for
approximately ten minutes, heard one of the pumps operating and called out to
her. Ms. Cheek thought she heard something and stopped. Because she could
not see anyone, she resumed pumping gas, and Mr. Wilkinson called out again.
The third time Mr. Wilkinson yelled, Ms. Cheek went into the station. Mr.
Wilkinson was able to open the door approximately one inch and hand Ms.
Cheek the keys to the padlock. She unlocked the door and let him out of the
storage room.
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ANALYSIS
The crux of the defendant’s argument is that this jury should have been
instructed that if the kidnapping was essentially incidental to the accompanying
felony (i.e., aggravated robbery), then convictions for both offenses cannot stand.
Where the trial court’s instructions on a matter are proper, its denial of a
special request is not error. See Shell v. State, 584 S.W.2d 231, 235 (Tenn.
Crim. App. 1979). The trial judge carries a positive duty to issue “a complete
charge on the law applicable to the facts of a case.” See State v. Phipps, 883
S.W.2d 138, 149 (Tenn. Crim. App. 1994); see also State v. Teel, 793 S.W.2d
236, 249 (Tenn. 1990) (an accused has a constitutional right to a correct and
complete charge of the law). A defendant is entitled to have every issue of fact
raised by the evidence and material to his defense submitted through proper
instructions to the jury, as well as, upon request, an instruction “which outlines
the defense theory of his case.” See Phipps, 883 S.W.2d at 149-50. However,
this Court reviews contested jury instructions in the context of the entire charge,
and if those instructions as a whole correctly, fully, and fairly set forth the
applicable law, then denial of a special instruction is not error. See id. at 142;
see also State v. Bohanan, 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987).
The defendant’s argument centers around the holding of Anthony, 817
S.W.2d 299 (Tenn. 1991). A due process case, Anthony focuses critical
attention, in the kidnapping/robbery context, upon the extent and effect of the
additional movement or confinement: Is the additional movement or confinement
essentially incidental to the accompanying robbery or significant enough, in and
of itself, to warrant independent prosecution?
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As a matter of law and not fact, this is to be determined by a judge and not
a jury. But first, this Court would be remiss not to note that the decisions in
Anthony and its companion cases involved statutory offenses under the pre-1989
Criminal Code. When, in 1989, Tennessee enacted a new criminal code, the
continuing force and relevance of many pre-1989 decisions became somewhat
questionable. However, in this case, as both Tennessee’s pre-1989 and
Tennessee’s current kidnapping statute are of similar focus, Anthony’s relevance
continues. See Tenn. Code Ann. §§ 39-13-301 to -305; see also State v. Dixon,
957 S.W.2d 532, 533 (Tenn. 1997).
Considering Anthony, we now review the defendant’s arguments and
conclude that the Tennessee Criminal Pattern Jury Instruction 8.02, as given in
this case, accurately states the law and is a proper instruction. The State is
correct in its reliance on the holdings contained in Dixon. In Dixon, Justice
Holder, writing for the majority, opined that “any restraint in addition to that which
is necessary to consummate rape or robbery may support a separate conviction
for kidnapping.” Id. at 535. Further, the decision in Dixon is relevant to our
instant inquiry regarding the relevance to other factors: (1) the distance removed
and (2) the duration of the confinement. The defendant argues that the building
where the robbery occurred was small and that the victim was not forced to move
more than eight to ten feet before being locked in a small storage room. In the
same vein, the defendant argues that the victim was confined for only ten
minutes before being discovered and freed. Dixon states:
Aggravated kidnapping statutes do not require a particular duration
or place of confinement; it is purpose of removal or confinement
and not distance or duration that supplies a necessary element of
aggravated kidnapping.
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Id. at 535. Therefore, the defendant’s arguments emphasizing the distance
removed and the duration of confinement are not dispositive. Our analysis
continues.
Instead, Dixon does set forth the standard used to determine whether the
victim’s movement or confinement was beyond that necessary to consummate
the underlying felony. To determine whether the additional movement or
confinement rise to a level sufficient to support separate convictions, Dixon
focuses upon three questions:
(1) Whether the movement or confinement prevented the victim
from summoning help;
(2) whether the movement or confinement lessened the defendant’s
risk of detection; or
(3) whether the movement or confinement created a significant
danger or increased the victim’s risk of harm.
Id. at 535. Each of these questions looks to the effect or purpose of the
additional movement or confinement.
In this case, we conclude that factors (1) and (2), as enumerated above,
apply. 1 The victim, trapped in the small storage room, was unable to summon
help, and the defendant’s escape was thereby facilitated. Therefore, we find that
the additional movement and confinement in this case rise to a level sufficient to
support separate convictions.
Finally, during oral argument defense counsel asked this Court to
sentence the defendant to ten years at 30%, the same amount the District
Attorney General was originally willing to accept as an appropriate sentence.
This panel is compelled to observe, as did the trial court, that it is the Legislature
that sets the sentences, and a District Attorney General may not agree to a
1
We disagree with the state regarding application of factor (3). Any potential danger inhering
from the pres ence o f a “poss ibly inflamm able furn ace” with in the she d is entirely too s peculative .
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sentence not provided for by the Legislature. Such is an illegal sentence and
cannot be enforced.
CONCLUSION
We AFFIRM the trial court’s judgment and sentence.
______________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_______________________________
GARY R. WADE, Presiding Judge
_______________________________
NORMA McGEE OGLE, Judge
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